HKSAR v. NGAI KAM YUEN

DCCC 1044/2017

[2018] HKDC 645

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of drug possession, the drugs involved are 11.60 grammes of solid containing 8.98 grammes of cocaine.

2.  Around noon time on 15 August 2017, patrol officers spotted the defendant acting furtively in Wai Ching Street, Yau Ma Tei, approached him for questioning but the defendant was uncooperative, the officers had to use force to subdue him.

3.  In his handbag, the officers found the drugs in this case, which were put in 59 small plastic bags in two resealable bags. The defendant immediately made a statement acknowledging ownership of the drugs at the scene and claimed that they were all for his own consumption.    

4.  The street value of the seized drugs is estimated to be slightly over $10,000.

5.  Two mobile phones were also found on him plus cash of a hundred odd or two.  

6.  The court adjourned sentencing for a DATC report to be prepared on the defendant. Now the report is before the court, which does not recommend admission to the Centre for he is no longer a drug dependent.

7.  The defendant, aged 27, has amassed 7 previous convictions over the past decade. The majority of them are drug-related (5 of them), he had been sent to DATC twice before in the year 2008 and 2010 for drugs possession, but his last two convictions were drugs trafficking in 2011 for which he was sentenced by the High Court to a total term of 8½ years. He was last released from prison in February, 2016.

8.  In Mok Cho Tik CACC 165/2000, the Appellate Court said,

“Sentencing is an art, and we emphasise that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months,…… Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect a starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course, the quantity of drugs. The full circumstances of the risk must be assessed.”

9.  The defendant was tested positive for cocaine after being taken into custody for the present offence. In the report, it was stated under the heading “Addiction History” that:-

“Defendant claimed that he was lured to abuse cocaine in 2005. Sadly, he added ‘ice’, ketamine, Ecstasy and nimetazepam into his drug list in 2006. He stated that he stopped his drug abuse behaviour in 2010. However, he relapsed into abusing cocaine in 2016. Prior to his present remand, he abused cocaine about 2 to 3 times a month, spending about $1,000 on each occasion. As claimed, his last dosage of cocaine was taken in August 2017.”

10.  According to his claimed dosage of cocaine, he used about two to three times a month, each time cost him a $1,000.  Just what this meant is unclear to me, after probing by the court, the defendant said through his counsel that he took 2 grammes of cocaine each time, 6 gs a month.

11.  In Yeung Chi Keung CACC 355/2006, the court was permitted to rely on the expert evidence of Dr Cheung from The Kwai Chung Hospital Substance Abuse Assessment Unit, that the average daily dose for crack cocaine was estimated to be 0.45 g. In our case, the drugs are cocaine which is the same drug as crack cocaine, only difference is that crack cocaine can be smoked. 

12.  To divide the amount the defendant possessed, i.e. 8.98 gs, by the average daily dosage, 0.45g, gives a figure of 19.96; put in another way, the defendant was in possession of cocaine 20 times of the daily dosage of a normal cocaine abuser.

13.  The defendant said that he used 2 gs of cocaine on each occasion, that’s 4.5 times of the average daily dosage, which would mean he had overdosed on cocaine every time he took the drugs. Common sense tells us that overdose on drugs could lead to dire consequences like seizure or even death. Obviously, his story about his dosage is not worthy of belief. Notwithstanding this, the court still accepts that he is a long time cocaine user.

14.  The Appellate Court in Mok’s case talked about the factors affecting where to take the starting point within the 12-18-month range, which included the quantity of drugs and the recidivism of the offender.

15.  In Wong Kwan Po CACC 437/2005 (a Chinese judgment submitted by defence), the defendant, Mr. Wong, a 22-year-old man with 4 prior convictions, 2 drug possessions and none trafficking, admitted possession of cocaine (27.56 gs powder containing 19.78 gs cocaine) and was initially sentenced to 26 months’ imprisonment. On appeal, his sentence was reduced by 10 months to 16 months.

16.  Mr. Wong claimed in the DATC report, which seemed not to be rejected by the trial judge, that he did casual work earning a daily wage of $400 but spent ¾ of it on drugs every day.

17.  Allowing the appeal, the Appellate Court in Wong’s case considered 15 months as appropriate for this amount of drugs and added 9 months for the risk factor. Deducting one-third for plea of guilty, the final sentence is one of 16 months’ imprisonment.  

18.  Admittedly, the drugs in the present case are less than that in Wong’s case at least by half, but should it be described as small amount in terms of a person’s possession. The drugs the defendant had got was 20 times of an ordinary cocaine abuser average daily dosage. When it comes to consider the size of the drugs which any bona fide user would normally have in his possession, this amount was nothing if not considerable. I would say the quantity of drugs in this case as well as in Wong’s case are both at the high end of what a cocaine user would have in his possession.

19.  Looking at his records, clearly the defendant is a repeat offender of drug offences. Based on his recidivism and the amount of drugs he possessed, I take 15 months as the starting point. Now I turn to consider the dissemination risk factor.

20.  The present case and Wong’s case are not on all fours, for example, the defendant in Wong’s case does not have any prior convictions of drug trafficking while the defendant here has not one but two. While avoiding a strict arithmetic comparison between cases as much as possible, I bear in mind what the Appellate Court said in Mok’s case above –

“Sentencing is an art, and we emphasise that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case.”

21.  The defendant was in stable employment at the time of his arrest, counsel said. He worked as a salesperson earning $20,000 a month. Upon probing by the court, defence counsel said that the defendant worked for a travel agency selling cruise trips to customers; as part of the work, he had to go out to the pier to look for customers between the hours of 3:30p.m. and 7:30p.m., and stay in office at other times.

22.  When asked about his working hours or usual day off, counsel said it was not fixed. When asked if he had any name cards, there was none. I find it hard to believe that if his job required him to go out to look for customers, he had no name cards. The court has indicated to the defence that it’s not prepared to accept his claim of employment on the evidence before the court, but was willing to hear further evidence to determine the issue. Having taken instructions from the defendant, counsel said they would not be calling any evidence.  

23.  In his antecedent statement dated 6 December 2017, he told the police that he worked as a clerk for a travel agency, but in the DATC report, he told the correctional officer that he was a salesperson earning $20,000 a month. On the information before the court about his employment, I must say it raised more questions than answers, and therefore I rejected his claim of having stable employment at the time of the offence.

24.  The drugs were divided into 59 small packets –surely these are typical baggies of cocaine as they are sold by street dealers. Without a stable job with regular income, and given the fact that the drugs were packaged in forms ready for re-selling plus his prior convictions of drug trafficking, I assess the risk of some of the drugs finding its way into the hands of others to be substantial. For that matter, I would add 12 months on top.

25.  The starting point would now become 27 months. Insofar as his mitigation is concerned, apart from his guilty plea, there isn’t any other substantial mitigation.  His plea is timely, so he is entitled to a full one-third discount.

26.  After giving the appropriate discount, the starting point is reduced to 18 months, as there being no reason for further reduction, the defendant is sentenced to 18 months’ imprisonment.